March of the bureaucrats

by David Forbes March 3, 2017

Despite a year of criticism and controversy involving senior city staff, at the recent Council retreat it was all back-patting and consolidating power for the city’s top officials

Above: One of the discussion boards at Council retreat, sketching out a delegation of authority that could potentially give City manager Gary Jackson potentially even more power.

Asheville City Council’s annual retreats can be many things: highly technical, deeply dull, incredibly important and a classic example of upper-middle class ritual bonhomie (team-building exercises!).

Beyond urban policy masochism, the reason many reporters and activists pay close attention is that they are also the site of some of the biggest decisions our elected officials will make all year. Ending Bele Chere’s multi-decade run? Decided at a retreat. Sunday bus service? Same. A big overhaul of development rules? Ditto. The list goes on.

The retreat is one of the rare occasions where the entirety of Council and senior staff get to spend a day or more talking about general topics and policies unconstrained by the limits of a usual meeting agenda. It’s often where new policies can get broached and, if they have enough support, advance.

In that sense, last year’s retreat was one for the record books. Over two days Council decided to fund a racial equity effort (including a major study), start a loan program, look further into a bond referendum and debated about staff not carrying through on the Food Action Plan the elected officials had passed.

This year’s Feb. 17 retreat could not have been more different. While last year’s was held in the middle of downtown at Buncombe County’s offices and saw a fair amount of public scrutiny and attendance, this one was among the least accessible I’ve ever seen. Sadly, that proved a part of what would become an overall theme as the day wore on.

This year the retreat was shuffled off to the depths of UNCA. Not one of the main buildings, mind you, but a meeting room in the bottom floor of a dorm, during the same weekend as the Buncombe County Commissioners’ retreat. Not surprisingly, this was one of the worst-attended retreats I have ever seen.

Then there was the focus of the day-long session. For the first time discussions of broader policy, especially new ideas, were specifically off the table. Instead the focus was on procedure, “operational guidelines” in technical jargon. In theory, this was supposed to improve communication and policymaking. As we’ll see, this basically ended up code for senior staff consolidating their power and pushing the view that citizen committees and Council had too much.

After rounding up my live coverage of the retreat, I debated for a long time about how to write this column. Things may get plenty opinionated at the Blade, but I generally prefer to analyze rather than opine on what Council’s done after a retreat. There’s naturally a little tea leaf reading in such an exercise and plenty of room for different takes on what a step may or may not mean, but I don’t usually feel the need to note how bad an idea a given policy might be.

This year’s retreat was so troubling that I decided that’s the route I have to go. The results of the retreat potentially transfer a large amount of power to senior city staff, a group that already has an outsize influence.

This was all the more bizarre because 2016 saw major controversies around top staff’s conduct concerning everything from transit to food trees to policing. It saw some city officials provably mislead or even outright lie to the public and city boards. It had multiple circumstances where Council and City manager Gary Jackson even had to apologize (and several others where they damn well should have).

Given all that, the theme of the day was, strangely, how efficient senior staff were and how much Council, locals and citizen boards needed to adapt to their whims to better make use of their time.

Yes, it was that clueless, that out of touch and that worrisome for those of us who hope for a responsive city government and push for more locals to become involved in the decisions that affect their lives.

Whatever your political views, “elected government involves check and scrutiny on the actions of the bureaucracy, who are not always right” shouldn’t be a controversial statement.

But here we are.

‘Operational guidelines’

In addition to a relatively inaccessible location, the general thrust of the day was apparent in the returning facilitator, Tyler St. Clair. A former Virginia prisons administrator with an open contempt for public participation was clearly the best choice to help craft a way forward for a progressive city with major inequality issues.

St. Clair is, bluntly, the most conservative and anti-democratic facilitator I have ever seen head up a retreat, to the point of disliking even the idea of elected officials having differing opinions.

This is actually very unusual. Before last year, the facilitator role was confined to keeping Council moving through the agenda and clearing up the occasional miscommunication. After most retreats I couldn’t have sussed out their political views if I’d tried.

But last year St. Clair took a different tack. She repeatedly asserted that it was a bad thing when Council had split votes, to the point that even some members countered that such was a natural part of electoral democracy. This time she began by cautioning them not to express political views while they were crafting policy, despite that being the point of elected officials’ existence.

Coming off a year that saw HB2, a renewed debate about racial equity and a sharp increase in open bigotry St. Clair warned Council away from dealing with “social issues” because they supposedly might take up valuable staff time.

Indeed, despite the multiple issues facing our city, except for a session touting their accomplishments during the previous year the entirety of the day was focused on “operational guidelines.” Hanging over it all was the repeated assumption that it was the appointed staff who were in the right and the troublesome elected officials or sadly misguided citizens needed to change their ways.

Ditto for the touting of the accomplishments of the past year, things like an updated use of force policy (the APD is already embroiled in another controversy over an officer’s actions) and the passage of the bond referendum, a list they all wanted the media to print in full. We’ll decline, thank you, the city has its own p.r. people.

Last year there was a touch of pushback to some of the more controversial actions (or lack of action) by city staff, even some criticism from Council. This year it leaned more towards rave reviews.

“We’re all agreed that staff is enormously productive,” Council member Julie Mayfield said. Mayor Esther Manheimer credited Jackson with modernizing the city’s administration. Council member Cecil Bothwell praised controversial City Attorney Robin Currin as professionalizing the legal department.

The exceptions to the constant praise were few, though there were some. Rather than adding accolades Council member Keith Young, reviewing the actions of last year, noted that “we’ve got a long way to go.” Manheimer observed briefly that the city needed to improve its communications with a number of communities (though the actions of some staff weren’t mentioned as part of the problem, despite that being a complaint from citizens in multiple controversies last year).

Jackson briefly noted that he wanted Council to hold staff accountable, but this received little focus or follow-up and can be dismissed as lip service given the emphasis of the vast majority of the retreat.

Staff, however, were more critical of Council and the city’s citizen boards. Assistant City manager Paul Fetherston asserted that matters “festered” within city boards, which needed to “help or get out of the way” of staff’s agenda.

Jackson asserted that Council’s policy-making in the last year had caused difficulties for senior staff “making the trains run on time.” He later changed trains to buses. Ironically enough, buses failing to run on time was actually a major controversy last year, though advocates put the blame on staff for ignoring community concerns.

Jackson wasn’t through, saying that he wanted to remind boards that they didn’t get to decide matters and he believed staff needed to “set expectations” to limit their actions.

Mayfield, in particular, agreed. She asserted that “staff guidance” was needed to “better manage” citizen boards, keep them from “overreaching” and reduce the “burden” on staff of having to deal with citizens expressing their opinions. Bothwell emphasized that boards needed to know they couldn’t direct staff members’ actions.

Vice Mayor Gwen Wisler claimed that citizens expressing concerns about “the facebook issue of the day” were taking up too much staff time. Other Council members didn’t side with staff quite so decisively, but none offered serious dissent to this course.

In that context, what did they decide?

• To directly email Jackson or his assistant rather than a department head about a given issue. Jackson already has a massive amount of control over how Council communicates with other staffers, and this only looks set to further cement that.

• To review the role of Council liaison. Currently city rules prohibit Council liaisons from playing an active role on committees, as liaisons they’re supposed to be there to observe (with some exceptions on specific boards). Young noted he felt like a “bump on a log” at meetings under the current rules, and other Council members noted they’d stopped attending many committee meetings due to the limitations of the liaison role.

• To rotate which two Council members regularly meet with the mayor. Of the steps agreed on at the retreat, this was the one that didn’t directly involve staff or boards. Council agreed to take this in an attempt to improve communication.

• To establish guidelines for the ad-hoc committees the city’s turned to in an effort to wrangle with issues like short-term rentals or the property across from the Basilica. Generally these have ended up facing criticisms over process, especially if the majority of the committee recommends something that one faction doesn’t like (as happened in the short-term rentals case).

However, that might also relate to the fact that on some of many controversial local issues, a policy that makes all sides happy is simply not possible. Like with the other items on this list, a lot will depend on what the frameworks look like and how staff interprets them.

• For the city manager to send an item back to committees or keep it from coming to Council if they felt that it hadn’t been through an “appropriate” process first. This was cited as necessary to avoid incidents like Council deciding last year to send a controversial plan to build fences in Pritchard Park back for further review.

But this is a lot of behind-the-scenes power over something that, again, Jackson already has a fair amount of control over (the manager sets the agenda under direction of the mayor).

Conceivably, if an issue had commissions disagreeing with staff and making different recommendations to Council, the manager could claim it still needed more work and send it back. If an issue dealt with areas that could conceivably fall under the purview of multiple boards (as many do) and the manager was concerned that a committee would disagree with staff, they could send it to another that was more sympathetic.

While the mayor or Council members could decide to countermand this, given the number of items on a given agenda, most of their rulings would probably stand. In the context of last year’s history of some staff repeatedly misinforming board members, that’s even more alarming.

• To draft charters defining the limits of committee’s powers and the issues they can weigh in on. Given the repeated invocations of “overreach” during the retreat and the fact that board members and Council are part time, it’s easy to see staff exercising a major role in limiting board powers this way, and using the technicalities created by this process to curb them further.

• Creating a pool of “neutral” citizens that could be tapped for boards and commissions dealing with controversial issues. Again, given the context of the rest of the meeting, the catch here is defining “neutral.” Given that staff (and those on Council more sympathetic to their view) have typically interpreted “neutral” as “in favor of the status quo” it’s easy to see how this turns into a way to blunt reform efforts and exclude members of communities most upset by a particular policy.

In fairness, I have to say that while covering this live, after I tweeted how the changes to agenda-marking could potentially mean a lot more power for Jackson, Manheimer directly approached me to disagree. She stated that it wouldn’t change that much from the way things currently work and, because more matters might get sent back to commissions, could actually put more power in their hands.

On paper, perhaps, but context is everything here. If, for example, the idea of charters for commissions was brought up in the context of a need to define a board’s powers to protect its role when staff are out of line, that would be very different. But it wasn’t.

Having these suggestions brought up by senior staff in a context of asserting board members need to “help or get out of the way,” as Fetherston put it, doesn’t scream “delegate more power to citizen commissions.” It declares “staff are tired of boards not rubber-stamping their proposals and are concerned it might happen more often as more people pay attention.”

Despite the supposed extent of the problems with commissions, surprisingly few specific examples were actually discussed. Jackson said he’d had issues with the African-American Heritage Commission, whom he accused of being “dysfunctional in a lot of emotional intelligence ways” (yes, he actually said that). Another committee mentioned as needing improvement during discussion between staff and Council was the Citizens’ Police Advisory Committee, where citizens and some board members have raised issues around equity and police conduct. This has included inviting Black Lives Matter and the Southern Coalition for Social Justice to present on issues (a majority of the committee recently voted to tighten its policies so presentations had to be reviewed by staff first).

A lot of the context remained below the surface. It’s worth delving into what that is, because it puts a very different light on the suggestions above.

Senior staff v. the public, a quick history

The relative lack of discussion of staff’s conduct was, frankly, bizarre, because the year Council were reviewing included several high-profile incidents of top officials running into controversies with members of the public, local non-profits, the transit workers union and many, many more.

In March, as state and local LGBT groups pressed Council to adopt a Charlotte-style non-discrimination ordinance, the City Attorney asserted that such a move would be illegal and halted its progress. For context, this position was even more far-right than that of the general assembly and contradicted the view, researched for several years, of the Charlotte City Attorney’s office. Currin has a long record of taking incredibly broad view of what documents are not public record and generally pursuing legal interpretations opposed to transparency in local government.

In June, the transit committee — including a range of bus riders and others with experience in the field — had major questions about why staff were recommending that a management company, First Transit, criticized by the drivers union and rider advocates was set to get another contract to keep running the local bus system. Things had, by that point, deteriorated so much that a majority of transit employees signed a letter of no confidence in the current management.

Board members specifically asked staff for a side-by-side comparison of First Transit’s contract offer and that of another company that had submitted a bid to manage the system. This was, keep in mind, at a meeting where the committee set up by the city to recommend improvements to the bus system was, as one might expect, tasked with weighing in on who got to run the bus system.

They were told by the transit planning manager that no such comparison existed. The same manager had in fact written just such a document over a month before. Later the bidding process was found to have run afoul of federal law, and Jackson apologized (for the process getting legally fouled up, not for the transit manager directly hiding the existence of a major document from a city board). The city had to go back to the drawing board.

The same month, a joint report by the Blade and Asheville Citizen-Times showed that city boards were disproportionately more white, male and wealthy than the city they represent. This issue had received increasing attention as the impacts of gentrification and de facto segregation became more prominent in Asheville. Not coincidentally, many of the controversies involved boards like transit and the police committee that had seen pushes to diversify in recent years.

In response to July protests criticizing the Asheville Police Department, law enforcement clamped down with after-the-fact citations to over 20 demonstrators for supposedly blocking traffic. The last time tactics like this were used briefly during the early days of Occupy Asheville. Back then, that approach was abandoned in the face of public criticism and concerns, including from some APD leaders.

Since then, the APD didn’t usually arrest protesters for briefly blocking traffic. Now that changed. In many cases, claiming they couldn’t find most of the individuals they cited, police did not notify some of the protesters that there were citations out for them, meaning they could be arrested at any time. One of the people who encountered this was a city board member who had even spoken at a police board meeting since the citations were issued.

At an August police board meeting, a deputy chief conflated the official morning protest with an evening one where there was a verbal confrontation between a motorist and some other protesters. Considering that in video of the protest played by the same official, the sun is clearly visible in the West, this meant that the he either lied or lacked the competence to determine basic facts about when the event took place. When multiple members of the public pointed this out at the time, the APD officials didn’t correct the record, nor did city staff upon repeated questioning from media afterward.

In early October, public works cuts down food trees in George Washington Carver park, in direct violation of an agreement with a local non-profit and without notifying one of its own departments that deals with food sustainability efforts. While city officials did apologize and note that it was a mistake, multiple locals told Council they saw a pattern of staff dismissing their concerns on a range of issues.

The heart of the problem

All of the above are legitimate issues, and the sort of thing members of the public in any city might understandably demand improvements on. The straight up deception or lack of competence demonstrated in this many incidents across this many departments — without any public repercussions — isn’t something that can be hand-waved away at this point. It feeds into something I’ve heard from countless locals, summed up in public comment over the Carver Park problem late last year, that the workings of staff are “a very dark and impenetrable place,” where “things seem to disappear in a welter of process and powerpoint and ‘best practices.’”

On other key issues, from the Walton Street pool to policing, I hear locals repeatedly say that there is no point in their involvement: staff does not listen, they do what they want and Council will not check them.

I understand different politicians or locals might have different views about how to address this. But given these incidents (and hell, several others) not addressing it at all isn’t just a bad idea, it’s utterly divorced from reality.

In the cases above it was staff, not locals or committee members, who manipulated a process, overstepped their bounds, broke agreements or, sadly, outright lied or misrepresented information to the public.

Staff and Council having a relatively “kumbaya” attitude isn’t new, but last year saw some pushback. So given recent history as a long-time I figured there would at least be some segment of the meeting dedicated to addressing the issue.

The majority of the staff presenting to Council or running discussion groups at the retreat make six figures or more. They can deal with an hour of “there were serious problems, let’s review what to do when staff lie, misrepresent or drastically miscommunicate with the public and see about changing some things.” Cynical as I sometimes am, I figured there would at least be some time set aside for this, even just for appearances’ sake.

There was nothing.

Democracy requires scrutiny

As someone who cares about this city’s civic life, this was a genuinely disturbing thing to witness, not least because of how compliant Council largely was. To one degree or another they all seemed to sign on with the view that staff were the experts on local government and that any problems in the way the city functions must come from boards overreaching their bounds, Council members making too many demands or citizens improperly informed about the details of process.

That’s wrong on several levels. A city that can’t make policy that meets the needs of the people on the ground is failing, no matter how many certifications its senior staff have or how pretty their plans look on paper.

Also: a review of the incidents above also reveals a very different picture than that painted by staff at the retreat, of real questions and anger coming from citizens with a wide variety of backgrounds and expertise. Agree with her suggestions or no, one of the main police committee members encouraging more public discussion and expression of dissent is a retired attorney and civil rights activist who literally wrote the book (one of them, anyway) on improving police-community relations. The BLM and SCSJ presentations that caused so much consternation among some staff were full of specific policy suggestions drawn from extensive studies and work done around the country, including detailed data analysis.

The transit committee, with a variety of backgrounds, viewpoints and no shortage of expertise, rejected staff’s bus contract proposals unanimously. Their ask to see more documents was the opposite of uninformed decision-making.

The food policy action plan backers similarly have no shortage of expertise and experience in their fields, as well as drawing from on-the-ground citizen concerns about the fact that a lot of people still go hungry in this town.

A board requesting information directly related to the system they help oversee isn’t some overstepping of boundaries, it’s their job. The public not trusting some senior APD staff isn’t some failure of communication, it’s because those staff were simply not trustworthy when it came to dealing with a major public controversy. Locals angry because the city outright broke its agreements with them isn’t some ignorance of the nuances of municipal government, it’s understandable frustration at the lack of competence and contempt communicated towards people who have tried in good faith to work with the city.

You will forgive me if, given all that, I am skeptical of the claims made by senior staff at this retreat, and the vision of our city they’ve put forward.

I’ve covered the city of Asheville for over a decade. I’ve seen many staff who were dedicated and honest public servants, but I’ve seen a lot who weren’t. I’ve seen staff who were incompetent bigots and kept their jobs. I’ve seen staff construct poorly thought-out policies and then try to tamp down public discussion to cover up the obvious consequences. As noted above, in multiple cases I’ve seen some staff outright lie without repercussion. I’ve seen them try to claim that incredibly controversial policies with awful track records in other towns are indisputable “best practices” to push a political agenda that favors one group or punishes another.

I’ve witnessed supposed experts ignore legitimate flaws pointed out by members of the public who were directly damaged by bad policies and had reams of evidence to back up their calls for reform.

So this idea of a cadre of self-sacrificing experts who always know best is a crock. They’re humans, like anyone else: some capable and ethical, some not. Having degrees or planning expertise doesn’t mean that some of them won’t abuse their power, push their biases, lie to cover their asses or just outright pursue some bad ideas. When they do the press, the public and, yes, Council have an obligation to take them to task, demand better and inflict consequences. The benefit of the doubt is the last thing a public servant should ever receive.

If given staff have an issue with that incredibly basic fact, they need to, frankly, stop whining and get over it. Democracy requires scrutiny. Any staffer that doesn’t accept that, from the public or the press, should find another line of work.

Last year offered abundant evidence that it is senior staff, not the public, that need to be reined in. But beyond frustration with officials who increasingly seem to regard the people they’re sworn to serve as an inconvenience there is the fact Council has an obligation here. Their job is not to reach consensus. Their job is not to be friends. Their job is not to retreat into a bubble of chummy cleverness with officials raking in several times a working Ashevillian’s income.

Their job is to use the power the people have granted them and be publicly accountable for that use. Once in awhile, believe it or not, that may even require more harsh skepticism than camaraderie with the officials they’re charged with overseeing.

At this year’s retreat, over a full day of discussion, our elected officials couldn’t even muster that. As a whole, Council’s patience with this behavior is apparently infinite.

Asheville’s is not. They would do well to remember that.

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